Farmer seeks legal fees from APA

LAKE PLACID - The state has declined any further appeals in its legal battle with Lewis Family Farm, but the case is not over.

At an Aug. 20 press conference in Lake Placid, Salim B. "Sandy" Lewis announced his decision to seek $208,000 from the APA to pay for his legal fees in a dispute that twice rejected an agency claim to jurisdiction over three houses on his 1200-acre organic farm in Essex.

When asked why he chose to do so, Lewis simply replied, "It's just."

John Privitera, counsel for Lewis Family Farm, Inc., said New York's Equal Access to Justice statute provides a remedy for parties subjected to unwarranted lawsuits from the state.

"It's part of the risk the agency assumed when they decided to test... their sadly mistaken view of the law by pursing an expensive and debilitating enforcement action against a small business," he said.

The case arose out of an APA determination to assess a $50,000 fine on the farm for building three two-story homes on resource management land without an APA permit. A cease-and-desist order prevented further construction on the unfinished homes.

In November 2008, however, Acting Essex County Supreme Court Justice Richard B. Meyer ruled in favor of Lewis Family Farm, finding that the houses were for agricultural use and therefore exempt from APA permit requirements.

Represented by State Attorney General Andrew Cuomo's office, the APA appealed the decision, but a five-member mid-level appeals court unanimously affirmed Meyer's ruling in their July 16 decision.

The loss represented the first major one for the APA in an Article 78 proceeding.

"Until this case, the APA had an aura of invincibility," said Lewis, who claimed previous attempts to challenge the agency have failed because too many area attorneys seek advice from the APA on how to handle cases against them.

No further appeal

The Attorney General's office had until 5 p.m. on Aug. 17 to request another appeal, but declined to do so. The motion for legal fees had the same deadline, but was filed Aug. 13.

"The state will not appeal the Appellate Division ruling regarding the Lewis Family Farm," stated APA spokesman Keith McKeever. "The Adirondack Park Agency believes the impact of the court's decision is limited because of the nature of the case."

But advocates of Lewis Family Farm disagree, including the New York Farm Bureau, which submitted a brief supporting the farm. The organization had urged the state not to pursue an appeal following Judge Meyer's decision.

"We are grateful to Governor Paterson for recognizing that pursuit of this case was not in the continued public interest," said Dean Norton, president of New York Farm Bureau. "This case was an important precedent for the rights of our farmers to conduct basic agricultural practices within the Adirondack Park, which is why we fought so vigorously for the Lewis family."

Although the case was strictly about farmworker housing, Privitera said, it sent a "clear signal" the APA needs to follow the law the way it's written; not the way they interpret it.

'A rogue agency'

"We fought this case because somewhere along the line, somebody's got to draw a line in the sand and tell the APA, 'You're off the reservation, you're a rogue agency and you need new management'" said Lewis, who has long blamed APA administration for stifling the viability of Adirondack communities. "We need the APA, but not this APA."

Lewis called for the resignation of top APA officials, including APA chairman Curt Stiles, legal counsel John Banta, and enforcement program supervisor Paul Van Cott.

Privitera said the APA was motivated by personal animus in its suit against the farm and misguided in it's attempt to hinder farm development, arguing viable farms protect open space.

"This was not just a legal mistake; this was a major policy blunder to disregard the beauty and art of the APA Act as a protection for farms," he stated. "It was never about the environment; it was never about visual impact or anything contained in the provisions of the [APA] Act."

'An increment of justice'

In addition to the $208,000, the farm has also suffered other setbacks as a result of the lawsuit, said Privitera, who called the recovery of attorney's fees "an increment of justice."

"We have been unable to use these unfinished farmhouses for two years because of this suit," he said. Also, the farm spent another $78,000 in legal fees that are not recoverable because they were incurred before the suit formally began.

"The Lewis Family Farm's business plans have been devastated by the agency," wrote Lewis in his motion affidavit.

While Privitera said suing for damages would be an option, neither he nor Lewis would comment on whether they would consider doing so.

If history is any indicator, the motion for legal fees is likely to be granted in court. Privitera said the government is almost always ordered to pay when such a motion is brought forth, and many such claims are not even challenged.

"Very rarely does the federal or state government ever assume the very heavy burden to show their position was substantially justified," he said.

Judge Meyer is charged with issuing a decision on the motion, and a Sept. 4 hearing has been scheduled, but will only be held if the judge deems it necessary.